Pendleton v. Lord — 34 N.Y. Super. Ct. 301

Majority

p. 301

JOHN M. PENDLETON, Plaintiff and Respondent, v. DAVID PORTER LORD, Defendant and Appellant.

Headnote

It is the settled practice ef this court not to grant a motion for a re-argument of a case on appeal at the general term, upon grounds that question the correctness of the former decision made upon the law and the facts as they were placed before the former general term (McG-arry v. Board of Supervisors, 1 Sweeney, 217). Ih this case the respondent holds, that the court in its disposition of the appeal overlooked an important question arising upon the evidence, and that such oversight worked a reversal of the judgment.

Held, that the question claimed to have been overlooked appears by the opinion of the court to have been fully considered and passed upon, and under these circumstances and the rule of practice referred to (supra), the appeal cannot be re-argued and re-examined.

Before Monell, Freedman and Curtis, JJ.

Decided March 30, 1872.

Motion for a re-argument.

The action is against the maker of a promissory-note, payable to the order of Charles E. Forman.

The defendant set up that he made the note in suit solely for the accommodation of the payee, and never received any consideration therefor. That the payee deposited with the plaintiff the note in suit, together with another one of the same amount, as collateral security for a loan of one thousand dollars, theretofore made by the plaintiff to -the payee, on or about May 21, 1866, which loan of one thousand dollars has been paid in full with interest.

The trial took place before a referee, who found, as a fact, that the note in suit was made by defendant for the purpose of being transferred to the plaintiff as

p. 302

collateral security for moneys which plaintiff had loaned said Forman, or might thereafter loan him, and that plaintiff subsequently advanced and loaned Forman moneys thereon, which had not been repaid, and, as conclusion of law, that plaintiff was entitled to judgment for the amount of the note with interest, for which sum and costs he directed judgment to be entered.

Upon appeal, the general term reversed the judgment and ordered a new trial upon questions of fact.

The respondent now moves for a re-argument of the appeal, upon the alleged ground that the opinion of the court shows that the question whether the plaintiff was not entitled to judgment on account of advances made prior to the execution and delivery of the note, has been overlooked.

Sidney S. Harris, for the motion.

William H. Forman, in opposition.

This is a motion

for a re-argument of the appeal from the judgment entered upon the report of a referee. It is the settled practice of this court not to grant a motion of this character upon grounds which question the correctness of the former decision made upon the law and the facte as they were before the former general term (McGarry v. Board of Supervisors, 1 Sweeny, 217 ).

It is conceded that- the appeal has been regularly heard and decided upon the merits, but it is claimed that the general term, in disposing of it, overlooked an important question arising upon the evidence, and that such oversight worked a reversal of the judgment.

The fundamental question of fact arising upon the issues and involved in the appeal was, for what purpose the note in suit had been given to the plaintiff.

The defendant had insisted, by answer and upon

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the trial, and Forman, the payee, had testified upon the trial, that the note was given as collateral security for prior advances, which were afterwards fully repaid.

The plaintiff had testified that no such arrangement was made, that there was no understanding according to which future advances were covered, but that he discounted or purchased the note absolutely.

The referee, disregarding the testimony of both Forman and the plaintiff, found, as a fact, that the note was given as security for future advances.

This finding the general term declared to be wholly unsupported by the evidence, and the judgment was reversed and a new trial granted for the reason that the ultimate decision of the referee was founded upon a theory which was materially erroneous, and the general term could not properly determine the facts upon the conflicting testimony presented by the case. That such conflict existed and still exists, becomes apparent on a mere inspection of the printed case ; and that all the questions relating to prior as well as subsequent advances, and of the payments made on either, and their respective application by operation of law or the agreement of the parties, were fully presented to the consideration of the court, appears from the printed points submitted by counsel on the former argument. We must assume therefore,-that all these questions were duly considered. Moreover, it sufficiently appears from the opinion of the court that the question claimed to have been overlooked, although distinctly raised by the pleadings, has been noticed and passed upon.

Under these circumstances we cannot open the appeal for a re-examination. The case of McGarry v. Board of Supervisors (supra), is decisive upon this point.

The motion for a re-argument must be denied.